Supreme Court of Ireland

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The Supreme Court (Irish: Cúirt Uachtarach) is the highest judicial authority in the Republic of Ireland. The Supreme Court is a court of final appeal and exercises, in conjunction with the High Court, judicial review over Acts of the Oireachtas (Irish parliament). The Court also has jurisdiction to ensure compliance with the Irish constitution by governmental bodies and private citizens. The Court sits in the Four Courts in Dublin.

Contents

[edit] Composition

The Supreme Court consists of its president called the Chief Justice, the President of the High Court who is an ex officio member of the court and normally sits in the High Court, and at least seven ordinary members.[1] The Supreme Court sits in divisions of three, five or seven judges. Two or more divisions may sit at the same time. When determining whether the President is permanently incapacitated within the meaning of Article 12 of the constitution, ruling on the constitutionality of a bill referred to it by the President under Article 26, or ruling on the constitutionality of any law the court must consist of at least five members.[2]

Judges of the Supreme Court are appointed by the President in accordance with the binding advice of the Government (cabinet), who, since 1995, act in turn on the non-binding advice of a judicial advisory board.[3]

[edit] Current membership (May 2008)

[edit] Jurisdiction

The Four Courts in Dublin.
The Four Courts in Dublin.

The Supreme Court hears appeals from the High Court, the Court of Criminal Appeal and the Courts-Martial Appeal Court. The Court's power to hear appeals can be severely restricted (as it is from the Court of Criminal Appeal and the Courts-Martial Appeal Court) or excluded altogether, with the exception of appeals concerning the consistency of a law with the constitution. The Supreme Court also hears points of law referred to it from the Circuit Court. In practice cases before the Supreme Court are virtually always heard on points of law only.

The Supreme Court only has original jurisdiction in two cases. This is when a Bill is referred to it by the President for an opinion on its constitutionality before promulgation under Article 26 of the Constitution or when the court must determine under Article 12 of the Constitution whether the President has become incapacitated.

[edit] Judicial review

The Supreme Court exercises, in conjunction with the High Court, the power to strike down laws which are inconsistent with the constitution. The courts also grant injunctions against public bodies, private bodies and citizens to ensure compliance with the constitution. The Irish constitution explicitly provides for the judicial review of legislation. Acts passed after the coming into force of the constitution, are invalid if "repugnant" to the constitution (Article 15.4.2°), while laws in force prior to the coming into force of the constitution are invalid if "inconsistent" with the constitution (Article 50.1). The constitution also provides, under Article 26, for the judicial review of bills before they are (or would have been) signed into law. The power to refer bills is personally exercised by the President after consulting the Council of State. When the Supreme Court upholds the constitutionality of a bill referred to it under Article 26, its constitutionality can never again be questioned in any court whatsoever (Article 34.3.3°).

Supreme Court judges are normally free to deliver their own judgements, whether dissenting and concurring. However when considering the constitutionality of an Act or Bill passed after the coming into force of the constitution, only a single judgement may be delivered by the Court (Articles 34.4.5° and 26.2.2°). Dissenting and concurring are allowed for considering the constitutionality of an Act passed before the coming into force of the constitution (Article 50).[4]

[edit] Jurisprudence

After a slow start in its first two decades of the Constitution, the Supreme Court has expounded a significant constitutional jurisprudence. This slow start was partly because, prior to 1922, the whole of Ireland was a part of the United Kingdom, and Supreme Court judges had been trained in British jurisprudence, which stresses the sovereignty of parliament and deference to the legislature. Nonetheless from the 1960s onwards the Court has made a number of significant decisions. It has, for example:

  • Developed a doctrine of unenumerated rights (not entirely unlike its American namesake) based on an expansive reading of Article 40.3.1°, with elements of natural law and liberal democratic theory.
  • Developed and defended the separation of powers.
  • Ruled that major changes to the treaties establishing the European Union may not be ratified by the state unless allowed by a previously passed constitutional amendment.
  • Ruled that Articles 2 and 3 (as they stood before 1999) did not impose obligations upon the state that were enforceable in a court of law.
  • Discovered a broad right to privacy in marital affairs implicit in Article 41.
  • Discovered a right to an abortion where there is a risk to the life of the mother through suicide in Article 40.3.3°.
  • Imported the doctrine of proportionality into Irish law.

[edit] Significant rulings

  • 1950 - Buckley v. The Attorney General (right to property)
  • 1965 - Ryan v. The Attorney General (doctrine of unenumerated rights)
  • 1966 - The State (Nicolaou) v. An Bord Uchtála (constitutional family only that based on marriage)
  • 1971 - Byrne v. Ireland (unconstitutionality of state immunity in tort)
  • 1974 - McGee v. The Attorney General (marital privacy and contraceptives)
  • 1976 - de Búrca v. The Attorney General (equality)
  • 1979 - East Donegal Co-operative v. The Attorney General (natural justice)
  • 1983 - Norris v. The Attorney General (criminalisation of homosexuality upheld)[5]
  • 1987 - Crotty v. An Taoiseach (ratification of European Union treaties)
  • 1988 - Attorney General (Society for the Protection of the Unborn Child) v. Open Door Counseling (information relating to abortion)
  • 1988 - Webb v. Ireland (non-survival of crown prerogatives)
  • 1989 - Kennedy v. Ireland (right to privacy)
  • 1992 - Attorney General v. X, more commonly the "X case" (abortion and risk of suicide)
  • 1993 - Attorney General v. Hamilton (separation of powers)
  • 1993 - Meagher v. The Minister for Agriculture (European Communities Act)
  • 1994 - Hearney v. Ireland (doctrine of proportionality)
  • 1995 - Re the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill (supremacy of written constitution)
  • 1995 - Re a Ward of court (right to die)
  • 1995 - McKenna v. An Taoiseach (referendum campaign finance)
  • 2001 - Sinnott v. Minister for Education (limitations on right to education)
  • 2003 - Lobe and Osayande v. Minister for Justice (deportation of the parents of citizens)
  • 2006 - Curtin v. Dáil Éireann (removal of judges)
  • 2006 - A. v. The Governor of Arbour Hill Prison (unconstitutionality of a law does not retrospectively invalidate all actions taken under it)

[edit] Sharing of sovereignty

Today the Supreme Court shares its authority with two supra-national courts: the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR). In matters relating to the correct interpretation of European Union law, decisions of the ECJ take precedence over those of the Irish Supreme Court. The relationship between the Irish Courts and the ECHR is more complicated as the European Convention on Human Rights only enjoys interpretative, sub-constitutional status in the Republic. Acts of the Oireachtas, when possible, are to be interpreted in line with the Convention, but the Convention must give way both to clear legislative intent and to any countermanding requirement of the Constitution; and convention provisions cannot be relied upon as separate causes of action.

Supreme Court decisions cannot be appealed, as such, to either court. The ECJ hears cases referred to it by the Irish Courts by way of case stated and while unsuccessful litigants before the Supreme Court can apply to the ECHR, the latter court's decision does not have the effect of voiding the Supreme Court's decision. Decisions of the ECHR do not automatically override Irish law and may require legislation or perhaps even a constitutional referendum to be implemented in full.

[edit] Notes

  1. ^ See Section 6 of the Courts and Court Officers Act, 1995.
  2. ^ See s.7 of the Courts (Supplemental Provisions) Act, 1961.
  3. ^ See the Courts and Court Officers Act, 1995
  4. ^ For example dissenting opinions were given in Norris v. The Attorney General, concerning the constitutionality of ss. 61 and 62 of the Offences Against the Person Act, 1861, whereas only a single judgement was given in Buckley v. The Attorney General, concerning the constitutionality of the Sinn Féin Funds Act, 1947. See Kelly and The State (Sheerin) v. Kennedy.
  5. ^ Ireland was subsequently judged to be in breach of the European Convention on Human Rights in Norris v. Ireland. Homosexuality was legalised in the Republic by the Criminal law (Sexual Offences) Act, 1993.

[edit] References

  • J.M. Kelly, The Irish Constitution 4th edn. by Gerard Hogan and Gerard Whyte (2002) ISBN 1854758950

[edit] See also

[edit] External links

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